Davis & Aubin v. John Bradley & Co.

The opinion of the court was delivered by Isham, J.

The plaintiffs’ right to the property for which this action is brought, depends upon the title of B. & H. Boynton, under their bill of sale from Sanborn & Catlin. As against the Boyntons the plaintiffs’ title has not been disputed. But it is insisted that the Boyntons had no title to this property, and consequently could convey none to the plaintiffs, and that it was competent for the defendants to introduce parol evidence showing that the sale, from Sanborn & Catlin to the Boyntons, was made upSn certain conditions, which having never been performed, the property never passed from them. If the testimony offered by the defendants is admissible, there is no doubt such would be its effect’; for it has been frequently decided in this State, that under a conditional sale or contract, the general property never passes, and when the payment of the stipulated price, under such a sale, is made a condition precedent, the payment must be made before the title vests in the purchaser. Bigelow v. Huntley, 8 Vt. R. 151. Smith v. Foster, 18 Vt. R. 182.

*60 For the purpose of showing the title of the Boyntons to this property, and their right to sell the same to the plaintiffs, the bill of sale executed on the 2d of June, 1848, by Sanborn & Catlin to • B. & H. Boynton, was introduced in evidence. There is no ambiguity on the face of this instrument. It is full and express in all its provisions, and contains an absolute and unconditional transfer of forty-five sacks of wool by Sanborn & Catlin to the Boyntons, twenty-one sacks of which is the subject of this suit. The Boyntons axe advised by that bill of sale that the wool was shipped to Messrs. Bradley & Co., at Burlington, subject on-its arrival to their order, and of which we find they immediately after took possession. The notes to be given for the wool are referred to, the amount specified for which each are to be given, and when to be made payable. It contains no provision that the delivery of the notes was to be made before the property passed!» the Boyntons, or that the wool was to remain the property of Sanborn & i Catlin, until the notes were delivered. But on the contrary, the'j fbill of sale passes an immediate and vested title to tlie wool, in the ¡I 'I Boyntons, with the absolute right of possession,.under the direc-j I tions given to the defendants, as wharfingers, to hold the property , I subject to their order. It is manifest-also from the instrument ; \ itself, that the parties intended that such should be its effect, for \ in a postscript to the instrument, a request was made so late as the 11th of June, and after part of the wool had been received, “ that the notes for the wool be forwarded soon, as the three months note was wanted for use.” At this period, time was given for the delivery of the notes, with the limitation, however, that it be done sCon. This, limitation is inconsistent with the idea, that they were to retain a title to the wool as security > for the delivery of the notes, and is consistent with the, legal effect of the instrument, that the title vested at the time of the sale, and reliance placed on the assurances of the party for the subsequent delivery of the notes. When, therefore, tlie defendants offered to prove that the sale on the 2d of June, 1848, was conditional — that part of the notes -were to be signed, not only by the Boyntons, but also by some •other responsible persons, and that the title to the wool was to remain the property of Sanborn & Catlin, until the notes were furnished, — they were offering to prove a contract, in many important particulars, different from that stated in their bill of sale. *61 It contradicts its specific provisions, by making that conditional, which is absolute on its face. It adds to the contract of sale, other stipulations and provisions not mentioned or referred to in the-instrument, not only in making the delivery of the notes a condi-tion precedent, but requiring them? to be executed, with other security, all of which essentially changes the legal effect and operation of the bill of sale. If this instrument is governed by the same principles that regulate other written contracts, the admission of the testimony would plainly violate that general rule of evidence, that parol testimony cannot be received to contradict, add to, or vary the terms of a written instrument. The authorities are quite uniform in placing these bills of sale on the footing of other written contracts, as being f equally unaffected by parol testimony. They were so treated in the case of Read v. Wood, 9 Vt. R. 285. The court there say, “ that whenever there is a sale, and a bill “ of sale, or sale note is given, such bill of sale is the evidence of “ the contract, and cannot be varied. It is the legitimate and “ proper evidence of the contract and of the terms and conditions “ thereof,” and the party was not permitted to prove 'by parol, a warranty of goods, as it added a provision to the contract not therein mentioned. In Lane v. Neale, 2 Stark. R. 105, it was held that parol testimony could not be received to show that other articles of personal property were included in the sale, as they were not mentioned in the sale note. Lord Ellenborough there says, “ that the bill of sale must be considered as the final contract be- “ tween the parties.” In Mumford v. McPherson, 1 Johns. R. 413, it was held that parol evidence was inadmissible to prove other provisions in a contract of sale,vnot mentioned in the bill of s'ale. Thompson, J., remarked “ that the contract between the parties “ was reduced to writing, and contained in the bill of sale, and “ recourse must be had to that instrument to ascertain its extent. “ The writing must be considered as the evidence of the agreement, “ and everything resting in parol becomes thereby extinguished.” No language can be more emphatic or applicable to the case under consideration, than this. And if in those cases, such testimony was inadmissible to prove stipulations upon which the bill of sale was silent, it would obviously be inadmissible in this case, where it contradicts its express provisions, adds to it stipulations not there mentioned, and changes its legal character and effect. Such *62 is the rule as between the parties to the instrument, and it derives additional force when it is offered against a third party who has made advances upon the property, relying upon the good faith of the parties in the execution of the instrument.

If, as contended by counsel, this instrument was nothing more than a memorandum of the property sold, and if the parties did not intend to put the evidence of their contract and sale, in writing, the admission of this testimony could be urged with greater propriety. It was upon this principle that the case of Allen v. Pink, 4 Mes. & Wels. 145, was decided, and upon this ground only can the cases of Bradford v. Manly, 13 Mass. R. 142 , and Boorman et al. v. Johnson, 12 Wend. 566 , be sustained. The principle of those cases can have no application to this, for this instrument is clear and specific in setting forth a contract, the parties thereto, its subject matter, the property sold, the price and manner of payment, as well as the terms of the sale. To defeat the legal operation of such an instrument, and divest a party of his title to property so transferred, by the introduction of parol testimony, would be a violation of established rules of evidence.

There is another view of this subject that renders the admission of this testimony quite objectionable. Sanborn & Catlin have placed this property in the possession of the Boyntons by their directions to the defendants, as wharfingers, to hold the same, subject to their order, and with this order they have executed and delivered to them, a bill of sale, affording the highest evidence of absolute and unconditional ownership. On the strength of this bill of sale and possession, the Boyntons have obtained the receipt of the defendants, as forwarding merchants, for the tranportation of this property to the plaintiffs, at Boston, on its consignment to them. The execution of this receipt by the defendants, as forwarding merchants, and its delivery to the plaintiffs, was a constructive delivery of the property to them, as much so as the indorsement of a bill of lading. Gardner v. Howland, 2 Pick. R. 599. 1 Smith’s L. C. 752, Lukbarrow v. Mason, and notes. With this evidence of title and possession in the Boyntons, proceeding from the act of Sanborn fy Gatlin, and with the evidence of consignment and delivery to the plaintiffs, they have accepted the same, and paid the drafts of the Boyntons upon them, on its account, for its value. It will operate as a great fraud on the plaintiffs, if they are compelled *63 not only to lose this property, hut also the money advanced, hy testimony showing that this absolute bill of sale was untruly executed, and that another agreement in parol, was made at the samé time, under which they are to he divested of that title to this pi’operty, which the hill of sale on its face, purports to convey. Such evidence is inadmissible on the ground of fraud, as well as contradicting the terms of a written instrument.

Sanborn & Catlin are concluded by their acts, from denying the title and right of the Boyntons to this property, hy the execution of their hill of sale, and order for the delivery of its possession. The Boyntons are equally concluded, hy their consignment of the property to the plaintiffs, and their drafts on them on its account, for its value. The defendants, also, are concluded from denying the plaintiffs title to the property and their right to its immediate possession, hy the execution of their receipt for the same, as forwarding merchants, therein acknowledging to have received the property of the Boyntons, to he forwarded hy them to the plaintiffs, at Boston. So far as the plaintiffs are concerned, the acts of all the parties operate as an estoppel in pais, preventing them from making any claim to this property, even, if as between the Boyntons and Sanborn & Catlin, the property was wrongfully disposed of hy the Boyntons. Thus in Pickering v. Rusk, 15 East. R. 38, where the owner of hemp caused it to he entered on the hooks of the wharfinger, in the name of the broker, who was its purchaser for him, the owner was held hound hy an unauthorized sale hy the broker to another, on the ground that the entry on the books of the wharfinger, was by the directions of the owner, and was a fraud on the purchaser, unless it was intended that he should he authorized to deal with the property as his own. Lord Ellenborough remarked, “ That strangers can only look to the acts of the parties,.and “ to the external indicia of property, and if a person authorize an- “ other to assume the apparent right of disposing of property in “ the ordinary course of trade, it must he presumed that the appar- “ ent authority is the real authority. That if the plaintiff intended “ to retain the dominion over the hemp, he should have placed it “ -in the wharfingers hooks in his own name.” So in the case of Dyer v. Pearson, 3 Barn. & Cress. E. 38, Abbott,. Ch. J., remarked, “ That it should have been left to the jury to say whether “ the plaintiff had by his own act, enabled Smith (the agent) to *64 “ hold himself out to the world as having not the possession only, “ but the property. For if the real owner of goods suffer another “to have possession of his property, and of those documents which “ are the indicia of property, then perhaps, a sale by such person “ would bind the true owner.” This doctrine has a very direct application to this case. For it was the act of Sanborn 0$ Gatlin that furnished the Boyntons with this absolute bill of sale, giving them the highest evidence of ownership and right of possession, and upon the strength of which the plaintiffs have purchased the property and made the advances.

Formerly the mere acts, or admissions of a party, when not under seal, or of record, were not considered as estopj>els, and had no other weight than that of evidence, more or less strong, as might be considered by the court or jury. “ But it has been properly “observed that the recent decisions of the courts, both in this “ country and in England, have given a much broader scope to the “ doctrine of estoppels in pais, than that which it had formerly, and “ have established, that whenever an act was done, or statement “ made, which cannot be contravened or contradicted without fraud “ on his part, or injury to others, whose conduct has been influ- “ enced thereby, the character of an estoppel will attach to that, “ which otherwise would be matter of evidence, and it will become “ binding, even in opposition to proof of a contrary nature.” 2 Smith’s Lea. Cas. 561, and cases there cited. And this principle is of general application-where there is — 1st, An act or admission inconsistent with the evidence offered, or title set up,— 2d, An act of the other party influenced or induced by such act or admission, and — 3d, An injury resulting therefrom, by permitting the act or admission to be disproved. Where these seVeral matters unite, the Jinks in the chain are formed for the application of the doctrine of estoj)j)el in pais. Dazell v. Odle, 3 Hill R. 219. Picord v. Sears et al., 6 Ad. & El. 469. Gregg v. Wells, 10 Ad. & El. 54. Dameys v. Field, 4 Met. R. 384. Hatch v. Kimball, 16 Maine R. 146. 17 Vt. R. 449. Hicks v. Cram, 2 Smith’s Lead. Cas. 562, in notes.

These facts all exist, and these various matters unite, in the case under consideration. For in the first place, there is the act of San-born & Catlin, in executing the bill of sale, and the delivery of the order, with the act of the Boyntons in making the consignment of *65 this property to the plaintiffs, and the act of the defendants, as forwarding merchants, in executing their receipt, and agreeing to transport the property to the plaintiffs, at Boston. In the second place, there is the act of these plaintiffs, in accepting the property consigned, and paying the drafts that were made on its account, all of which are inconsistent with the title and claim now set up, and offered to he proved. And in the third place, there is the damage that will be sustained by the plaintiffs in allowing those facts to be disproved, in the loss of this property, as well as the money advanced. In preventing the party from making such claim, by the rejection of testimony offered, the equity and justice of the case was evidently sustained.

The case of McCombie v. Davis, 6 East. R. 583, is not inconsistent with the principles here decided, as in that case, the evidence •of title was wrongfully obtained, and without the act of the owner of the property, and therefore, he shall not be estopped.— And of this character are those cases where sales have been made without authority, or with the possession of those evidences that are not proper documentary evidences of title. But where one has the proper documentary evidence' of title, given by the owner of the property, he is bound by whatever disposition is made of it. In such case there is force and propriety in the suggestion, that where one of two parties must suffer from an unauthorized act, the loss should fall upon the owner who has intrusted the party with the possession of his property and the evidence of title, and thereby enabled him to commit a fraud, and should not be visited on the vendee, who has acted in good faith, and with proper caution. We think, therefore, the testimony qffered was properly rejected, and that the judgment of the county court must be affirmed.